NYC Bar Advises Against Recording Non-Clients Without Good Reason

• The New York City Bar Association has released a formal opinion on the ethical use of artificial intelligence for recording non-client conversations.
• Attorneys must obtain consent from any party before recording their calls, and consider whether it is 'tactically well-advised' to do so.
• Unless there is a good reason, attorneys should avoid recording conversations due to ethical and tactical risks.
• The opinion highlights the importance of preserving privilege in settlement discussions or mediation, where recordings may create evidentiary risks.

Unless they have 'a good reason,' attorneys should avoid recording conversations because of ethical and tactical risks.

The New York City Bar Association has released a formal opinion on the ethical use of artificial intelligence for recording, transcribing, and summarizing conversations between attorneys and non-clients. This opinion, Formal Opinion 2026-2, provides guidance on when it is permissible to record such conversations and highlights the potential risks involved. The opinion builds on previous opinions related to recording conversations between attorneys and clients, and notes that similar principles apply to interactions with co-counsel, prospective clients, opposing counsel, witnesses, and employees or agents of the attorney.

The formal opinion emphasizes the importance of obtaining consent from any party before recording their calls, as well as considering whether it is 'tactically well-advised' to do so. It also warns that unless there is a good reason, attorneys should avoid recording conversations due to ethical and tactical risks.

The New York City Bar Association's formal opinion on the use of artificial intelligence for recording non-client conversations is rooted in existing principles related to attorney-client privilege. The opinion notes that similar considerations apply to interactions with co-counsel, prospective clients, opposing counsel, witnesses, and employees or agents of the attorney. In these contexts, the risk of information sharing and potential conflicts of interest must be carefully managed.

The formal opinion also highlights the importance of preserving privilege in settlement discussions or mediation, where recordings may create evidentiary risks. Additionally, it warns that recordings with witnesses or potential witnesses are potentially discoverable, which can jeopardize confidentiality.

The New York City Bar Association's formal opinion on the use of artificial intelligence for recording non-client conversations has significant implications for attorneys. The opinion advises against recording such conversations without a good reason, due to ethical and tactical risks. This guidance is particularly relevant in today's digital age, where technology can easily facilitate recording and sharing of conversations.

The opinion also underscores the importance of careful consideration when deciding whether to record conversations with prospective clients. While there may be value in having a record of such conversations, it can also create risks related to information sharing and potential conflicts of interest.

Lawyers should exercise caution when recording conversations with non-clients, as the NYC Bar advises against doing so without a good reason, to avoid ethical and tactical risks.

Source: Original reporting via New York City Bar Association